Opinion
Submitted March 1, 2000.
June 19, 2000.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated May 18, 1999, which granted the defendants' motion for summary judgment dismissing the complaint.
James J. Killerlane (David Samel, New York, N.Y., of counsel), for appellants.
Joseph A. Maria, P.C., White Plains, N.Y. (Gregg D. Minkin of counsel), for respondents.
Before: GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
In support of their motion for summary judgment, the defendants submitted the affirmation of an orthopedist who concluded, based upon a physical examination and objective medical tests, that the injured plaintiff's disc herniations were the result of a pre-existing degenerative condition rather than the subject automobile accident. This evidence was sufficient to establish a prima facie case that the injured plaintiff had not sustained a "serious injury" within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955), thus shifting the burden to the plaintiff to come forward with admissible proof to raise a triable question of fact (see, Grossman v. Wright, 268 A.D.2d 79 [2d Dept., May 8, 2000]; Joseph v. Cherry, 269 A.D.2d 498 [2d Dept., Feb. 22, 2000]). The affidavit of the injured plaintiff's treating physician failed to raise a triable issue of fact because it improperly relied upon findings contained in the unsworn medical report of another physician (see, Diaz v. Wiggins, 271 A.D.2d 639 [2d Dept., Apr. 24, 2000]; Smith v. Askew, 264 A.D.2d 834; Ahmed v. Yoo, 255 A.D.2d 345), and failed to set forth any objective medical basis for his conclusion that the injured plaintiff's disc herniations were caused or exacerbated by the subject accident (see, Grossman v. Wright, supra; Vitale v. Carson, 258 A.D.2d 647; Nadrich v. Woodcrest Country Club, 250 A.D.2d 827; Weaver v. Derr, 242 A.D.2d 823).